Opposition Brief — John Christopher Marquard, Petitioner v. Florida

CASE NO. 17-9537

IN THE UNITED STATES SUPREME COURT

October 2017, Term

JOHN MARQUARD,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

PAMELA JO BONDI

Attorney General

Tallahassee, Florida

LESLIE T. CAMPBELL*

Sr. Asst. Attorney General

Florida Bar No. 0066631

Office of the Attorney General

1515 N. Flagler Dr.; Suite 900

West Palm Beach, FL 33401

Telephone (561) 837-5016

Facsimile (561) 837-5108

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

[Restated]

Whether certiorari review should be denied where the

state court (1) afforded Petitioner a constitutionally

adequate opportunity to show why unfavorable binding

precedent was not applicable to his capital case; (2)

determined Hurst v. Florida and Hurst v. State were not

retroactive to Petitioner’s case based on state law; and (3)

Petitioner's capital sentenced comports with Caldwell v.

Mississippi; and the Florida Supreme Court’s decision

does not conflict with any decision of this Court or involve

an important, unsettled question of federal law?

(restated)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........ccccccceccccscceeescesseeseversescesceetenees 1

TABLE OF CONTENTS o.oo. cccecceccecceseeseseeseeseeesseneeseesecsssscesscseesecssssstesensvsseaees ui

TABLE OF CITATIONS o.oo. ccececccecesceseeseeseeseeeeeseeecsecssccscssssssescssesssssesseaceacere il

CITATION TO OPINION BELOW ...0..ccccccccccecccecccescesccscescesessesestseascaeeeseacens 1

JURISDICTION wooo ceccececceseeseeseeseeseeeesseescesesecsecsessscsssasssesssecsstssenesaseaceas 1

CONSTITUTIONAL PROVISIONS INVOLVED ........cccccececccecceeeeseseeeseeeeeees 1

STATEMENT OF CASE AND FACTS o0.....ccccccccccececceccescescssscesevsceseeseseess 2

REASON FOR DENYING THE WRIT 0... .ceccccccccccccsscescesccscesseesessseeecseeens 8

ISSUE I

WHETHER CERTIORARI REVIEW SHOULD BE DENIED WHERE THE

STATE COURT (1) AFFORDED PETITIONER A CONSTITUTIONALLY

ADEQUATE OPPORTUNITY TO SHOW WHY UNFAVORABLE BINDING

PRECEDENT WAS NOT APPLICABLE TO HIS CAPITAL CASE; (2)

DETERMINED HURST V. FLORIDA AND HURST V. STATE WERE NOT

RETROACTIVE TO PETITIONER’S CASE BASED ON STATE LAW; AND

(3) PETITIONER’S CAPITAL SENTENCE COMPORTS WITH CALDWELL

V. MISSISSIPPL AND THE FLORIDA SUPREME COURT'S DECISION

DOES NOT CONFLICT WITH ANY DECISION OF THIS COURT OR

INVOLVE AN IMPORTANT, UNSETTLED QUESTION OF FEDERAL

LAW? (RESTATED) 0o.o.eecccccecccccsseccecsesesscssscscscsssesscscssscscscscessevacecasaveceatsesnsananes 8

CONCLUSION 0... ee cceeceeescceseeseceeeeseeseeaeeseeseceeecseesscesesscsusenssesesseenees 27

CERTIFICATE OF SERVICE oo... eee ceecceeseeessecsseeessecssecesssecesssascessssessaseess 28

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abshire v. State, 642 So. 2d 542 (Fla. 1994) oo... eeceeccececeeseseeeeessesssesessstsesseseatenssteseness 4

Alleyne v. United States, 133 S. Ct. 2151 (2018) woocieecicecccccesessecseeescescescessesececeses 25

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ....ccccccccccccccccccccecccccceeseeeees 25

Anders v. California, 386 U.S. 7388 (1967) ..cccecccccecccecccecceeseeesecessceecsesececessseeseseeenes 12

Apprendi v. New Jersey, 530 U.S. 466 (2000) .o..ceccececccceeccececescescsceseeesescesseeees 17, 25

Asay v, State, 210 S0.3d 1 (Fla. 2016)... ccicccccccccccecceseseceesseeseeseceseeseeeseesecesees passim

Beck v. Washington, 369 U.S. 541 (1962) ....ececcccceceessssssseescssceseeseescesesssessvscseseseses 19

Bogle v. State, 213 So. 3d 833 (Fla. 2017) ......c.ccceccsecsecesseeeseseessseseseetesescsescessesesensneees 10

Bounds v. Smith, 430 U.S. 817 (1977) o.eceescecececeesseeeeeeeseseesesesesesnesesesesessesesestereeesensees 12

Branch v. State, 234 So. 3d 548 (Fla.)....ccccccccccccccecceceeecsessecesssecssessscssesesecesscesseeseseeces 16

Caldwell v. Mississippi, 472 U.S. 320 (1985) ......cececcecescccescesessceesscecssscssseseuseceeseseseseece 8

Cardinale v. Louisiana, 394 U.S. 437 (1969) .oo.ceccccccccsscsssccececscessccececsececsececcereeeseces 16

Crawford v. Washington, 541 U.S. 36 (2004) oo. eeccecccesceesccesseesscesscessesessccseeesceesees 17

Danforth v. Minnesota, 552 U.S. 264 (2008) oo... ceccceccccccsccsccececsecessssescscsscesececeseceeees 15

Darden v. Wainwright, 477 U.S. 168 (1986) oo... ccc cecccecccecesceesccesssecesscecssceceseessee 21

Davis v. State, 207 So.3d 142 (Fla. 2016) oo... .eeceeccsceeeeeeeeeseesesesteseseseeeesseesescsceeaeeees 6

Dorsey v. United States, 567 U.S. 260 (2012)... eccecccccceccessecesseesecesecesceecessceeeceeeees 18

Douglas v. People of State of California, 372 U.S. 353 (1968) ....ecccccccccccssecssscecseseeeeee 12

Dugger v. Adams, 489 U.S. 401 (1989) oc cecceccecceccccccecscceseeescecseeessesseeceseescesseees 21, 23

Erie R. Co. v. Tompkins, 304 U.S. 64 (1986) wo.ccceecccececesscesecceceeeseeseesseecssecssesssesseceeee 9

iil

Evitts v. Lucey, 469 U.S. 387 (1985) o...ccecceccccccssccssccessccscesecseececsaresseetsessessessrseees 11

Florida v. Powell, 559 U.S. 50 (2010) ...cceeccecccccessscceccceeccecececececesecesseessecessserssenssseees 16

Fox Film Corp. v. Muller, 296 U.S. 207 (1985) ....cccccecceccecccessesscescescesecsscessesseeseaseeaees 16

Gaskin v. State, 218 So. 3d 399 (Fla. 2017) ....cecsccccceseseeseeseeeeeteeeteneseteeseesetsnesesesseeees 10

General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175 (1924) ......... 20

Griffith v. Kentucky, 479 U.S. 314 (1987) .o.ccccccccccececescecceccesscesesscesssaseusevscsseeseeanes 17

Hannon v. State, 228 So. 3d 505 (Fla.) ...c.ceceecceeecsseeseceseseeeeeseeeeseeeeseseseesseseesesneneessees 16

Harris v. Alabama, 513 U.S. 504 (1995) ..c.ceceseeceecteeseeeeeseseeeeseeecaeeeeteneeeseseseatsesees 22

Hitchcock v. State, 226 So.3d 216 (Fla. 2017) .....ccccccessccccsseceeececceessceessseceens 6, 7, 10, 16

Hurst v. Florida, 136 S.Ct. 616 (2016) ........c.cccscsssecseseesesseeeeeeeesseeesneeseees 2, 5, 9, 10, 24

Hurst v. State, 202 So.8d 40 (Fla. 2016) .......ccccccccccscescceccescesceseessessessessensvenes passim

Jenkins v. Hutton, 137 S. Ct. 1769 (2017) .ocecceccccccseseccceesceecesseccessessseseessssessseece 25, 26

Johnson v. State,___ So. 3d ____, 2018 WL 1633048 (Fla. April 5, 2018) ..........0. 22

Jones v. Barnes, 463 U.S. 745 (1988)... cecccceesecesesesseseseeseeeeteneteseseseenetessseseseneees 11, 13

Kansas v. Carr, 186 S. Ct. 633 (2016) ooo.e eee ceccccceccceesccecescecaecesaceesseessseccassessessseeensees 24

Lambrix v. State, 217 So. 3d 977 (Fla. 2017) .....ccceseeeseseeeeeeeeeeeseeseeeesteteeetsseseseseeees 10

Lambrix v. State, 227 So. 3d 112 (Fla. 2017) ......cccccccccccceessccecsecseccesecsssccececsseecersesucece 16

Lawrence v. Chater, 516 U.S. 163 (1996) .......ccccccccceecesccescesseescesecesscesscsseereesnesenes 11

Marquard v. Florida, 513 U.S. 1182 (1995) oo..ececceececceeeseeeeseseceecececeesesseeseesestssees 2,7

Marquard v. Sec'y for Dept. of Corr., 429 F.3d 1278 (11th Cir. 2005) .....cececcececeeeeeee 5

Marquard v. State, 234 So.3d 560 (Fla. 2018) ......cccccecccccccccsccccsesceseessesesesaevese passim

Marquard v. State, 641 So.2d 54 (Fla. 1994) ooo. ceeecccecsscsceesssceesssceseseecetscesenss 2, 4, 7, 25

lv

Marquard v. State, 850 So. 2d 417 (Fla. 2002) .....c.cccecceceecccesccesecececeeeeeseetseeeseens 5, 25

Marquard v. State, 993 So.2d 513 (Fla. 2008) .o...eccceeccecccceccccecceceeceesseceesseetsceestseessseees 5

Marshall v. Jones, 226 So. 3d 211 (Fla. May 4, 2017) ....cccccceccccessceesccessceesseeessseessees 10

McCleskey v. Kemp, 481 U.S. 279 (1987) .oo.cececceeccescecsssscsssesececceseeseseceaceeseeseesecseeeses 19

McLaughlin v. Florida, 379 U.S. 184 (2008) .....ccccccecccccccccsesccecscesecscecesscsseceeeenseceseees 14

Michigan v. Long, 463 U.S. 1032 (1988) oo...ccecceceecceesccescesceecesecsceeecerecsacensseetsensseeesees 16

Middleton v. Florida, 138 S. Ct. 829 (2018) ...c.ceecccecccccsessceeeceececessceesessecsesssesestsceeeses 22

Mosley v. State, 209 So. 3d 1248 (Fla. 2016) oo... .cececcccecccesccceccccececeseeetssecssees 5, 13, 15

Neder v. United States, 527 U.S. 1 (1999) ....ccccccccccccccecccescesscssseceseetesesesesecenseeneess 26

Page v. Arkansas Natural Gas Corp., 286 U.S. 269 (1982). .0...ccccceccesssesseceseeeeeeesees 20

Patrick v. State, 104 So.3d 1046 (Fla. 2012)... ccceceesecscseeseseeeeeeeeesesesesteesteneneess 21

Patterson v. New York, 482 U.S. 197 (1977) oi... cceccccccsccceesseceesscecseceesssseessssecessaceeessssees 9

Pennsylvania v. Finley, 481 U.S. 551 (1987) ....cccccceccccssesceccescesceccessescessesecssceseesseaes 11

Reynolds v. State,___ So. 8d ___, 2018 WL 1633075 (Fla. April 5, 2018)........... 21, 22

Ring v. Arizona, 536 U.S. 584 (2002) ....eccccceececcesecessescescessescescceeeeeeeeeseeates 5, 10, 22

Rockford Life Insurance Co. v. Illinois Department of Revenue, 482 U.S. 182 (1987)

See eeee eee cec ee eeece anes eae eesaeeeeeaaaeeeeaaeeeenaeeeeaeeeaeeeeeaaeeeeeeeeeeeeeeeesaaeeeeeeeeeeeseaeeeeaeseeseeeesanessnseeeaee 20

Romano v. Oklahoma, 512 U.S. 1 (1994) woeceececcceescccesccceesesececeesecssecensecetseeesssseesas 21, 23

Schriro v. Summerlin, 542 U.S. 348 (2004) woo..cceecccccccescsessceseccesccceneceesseeeeseeestecensas 17

State v. Gales, 658 N.W.2d 604 (Neb. 2008)... cece eseeseeseseeeeeeseseseeeeteneneneneeseeees 23

State v. Mason, ___ N.E.3d __, 2018 WL 1872180 (Ohio, April 18, 2018)............... 22

Street v. New York, 394 U.S. 576 (1969) oo..cecc cee cccecccceececceceeceeseevetseseeenseeeseetsteeeenacs 16

Stutson v. United States, 516 U.S. 163 (1996) .o...c cee cceccsssceescsseecescecsesecesceeseaseeates 11

Teague v. Lane, 489 U.S. 288 (1989) ......ccceccececcceceescescescesscsseccseeesevauensavesenteseas 15,17

United States v. Abney, 812 F.3d 1079 (D.C. Cir. 2016)... cecececeesessesesessesesesesteseseees 18

United States v. Johnston, 268 U.S. 220 (1925) oo... ccceccccccsecceeeececceeceseecessuseeeesseceesseees 20

United States v. McCollom, 426 U.S. 317 (1976) o....ccccccccccesssceceessecesseeusseestscessacecssenes 13

United States v. Purkey, 428 F.3d 738 (8th Cir. 2005) .....cccecccccccecsceeseseceeeseeeseeeseess 23

United States v. Sampson, 486 F.3d 13 (1st Cir. 2007) .o.cecceececcesceesecesceeseeeeeeereeee 22

Waldrop v. Comm’r, Alabama Dept. of Corr., 2017 WL 4271115 (11th Cir. Sept. 26,

QOL T) ooeeeeseccececsecseseeeseesceeseenevsseseesescacecsscaeseecacseeucansacacaessasenenssasassestensassnsesssseseansseees 23

Wellons v. Hall, 558 U.S. 220 (2010).....c.cececesecssesseseseseeeeeeseseesseseseseseseesenseeeussesesescenees 11

Whorton v. Bockting, 549 U.S. 406 (2007) ........ecccceeseseceeeeeceeseeeeeerenseeeeeecseseaeaeenenees 17

Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17, 2017) .......ccc 10

Witt v. State, 387 So.2d 922 (Fla. 1980) .......cscecseecssscsessesseeseseeseseseeeeeaeseseetessseeeeseenees 15

Zack v. State, __ So. 3d ____, 42 Fla. L. Weekly S656, 2017 WL 2590703 (Fla. June

15, 2017) oececececcecesecsceeseesesesesteseseseeveseansucassnsscasensueseseeseeesesaeasatsnensacaesessseeseseesieseenenees 10

Statutes

28 U.S.C. § L257 (a) ooccecccceccecsccscscesccsscsccsceecescsscesssssscsassassssssesaecesseacaeeaesaceasvaueateseesesseas 1

§921.141(2)(c), Fla. Stat. (2017) oo.cccccecccecceseccescssescsccssescecescescsscsevsccavuseseseeaceavseecsees 23

Rules

Fla. R. Crim. P. 8.851 oii cceccccccscsneceneseeeenseecesseeeeeeesenseeeeesseeecsssseeseesesessessecssasensasees 2

Fla. R. Crim. P. 3.85 1(€)(2) ....cccccccccscsscssessssescsecssscscsscescseessscesccecaucsssseessssaceseescaseavanes 13

Florida Rule of Criminal Procedure 3.850 ..........cccccccccscessseeeseseceeesscesesseececssecessssenasees 4

U.S. Sup. Ct. Re LO... cece cccccccceceaseceeseseeeeseeeeeccecececessseeccesescecesceceeeeeeeeeeeeeeeeeeereaae 8

U.S. Sup. Ct. BR. 88 ooo cccccecccececeeeeesseeeeeeeseesesesaaseeeeseeeseeseesseneseseescceeeseceesesaaeess 11

vi

CITATION TO OPINION BELOW

The decision of which Petitioner seeks discretionary review is reported as Marquard

v. State, 234 So.3d 560 (Fla. 2018).

JURISDICTION

Petitioner, John Marquard, (“Marquard”), is seeking jurisdiction pursuant to

28 U.S.C. § 1257(a). This is the appropriate provision.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent, State of Florida (“State”), accepts as accurate Petitioner’s

recitation of the applicable constitutional provisions involved.

STATEMENT OF THE CASE AND FACTS

This capital case is before this Court upon the Florida Supreme Court’s

affirmance of the denial of Marquard’s second successive postconviction relief

motion addressed to Hurst v. Florida, 136 S.Ct. 616 (2016) and Hurst v. State, 202

So.3d 40 (Fla. 2016). The Florida Supreme Court denied relief finding Marquard’s

case was final before June 24, 2002, thus, under state law, he was not entitled to

the retroactive application of Hurst v. Florida and Hurst v. State. Marquard v.

State, 234 So. 3d 560, 561 (Fla. 2018)

Marquard, was convicted of first-degree murder and armed robbery and was

sentenced to death. Marquard v. State, 641 So.2d 54 (Fla. 1994). On January 23,

1995, pursuant to Rule 3.851(d)(1)(B), Fla. R. Crim. P. 3.851, Marquard’s judgment

and sentence became final with the denial of certiorari by this Court. Marquard v.

Florida, 513 U.S. 1182 (1998).

The Florida Supreme Court, on direct appeal, set forth the facts of the case as

follows and noted that the jury made a unanimous recommendation of death:

John Marquard, Mike Abshire, and the victim, Stacey

Willets, decided to move from North Carolina to Florida in

June 1991 using Stacey's car and sharing expenses. Prior

to leaving, Marquard and Abshire discussed killing Stacey

for her car and money, and during a stop in South

Carolina Marquard told Abshire that he was going to kill

her because he was tired of arguing with her. In St.

Augustine, Marquard and Abshire formulated a plot to

kill Stacey that night after luring her into the woods.

Marquard and Abshire invited Stacey to attend a party,

drove her to a deserted area, and walked her into the

woods. Marquard grabbed her from behind, stabbed her,

threw her to the ground, and sat on her back. She was

still breathing, so Marquard held her head under the

rainwater that had accumulated in a puddle until she

stopped breathing. When her body convulsed, he held her

head underwater again. Abshire then stabbed her and the

two tried to decapitate her. Marquard was arrested and

confessed, saying he remembered walking into the woods

with Stacey and standing over her body with a knife in

hand. Abshire testified at trial, giving a detailed account

of the murder.

Marquard was convicted of first-degree murder and

armed robbery. The State put on a single witness to

establish aggravation during the penalty phase—a parole

officer who testified that Marquard was on parole in

North Carolina at the time of the killing. Marquard called

Dr. Harry Krop to establish mitigation, and Dr. Krop

testified extensively concerning Marquard's deprived

childhood and present psychological state. The State put

on its own mental health expert, Dr. Merwin, in rebuttal.

The jury recommended death by a twelve-to-zero vote,

and the court imposed death, finding four aggravating

circumstancesFN1 and a number of nonstatutory

mitigating factors.FN2 The court imposed a consecutive

life term for the armed robbery conviction.

FN1 The judge found that the murder was

committed while Marquard was under

sentence of imprisonment; was committed

during the course of a _ robbery; was

especially heinous, atrocious, or cruel; and

was cold, calculated, and premeditated.

FN2 The judge made the following findings:

The Court finds the Defendant had an

unstable family life as a child and lacked the

emotional support and care he should have

received.

The Court finds that Defendant suffers from

either a personality disorder not otherwise

specified or an antisocial personality. There

is not much difference between the two. The

Court further finds Defendant did not have a

stable home, but had divorced parents and

an alcoholic mother with whom he lived. He

had a difficult childhood. He may have been

sexually abused on one occasion. Defendant

used various drugs and alcohol, however,

there is no evidence that use of those had

anything whatsoever to do with the

commission of the murder.

Marquard, 641 So.2d at 55-56. In a later appellate review, the Florida Supreme

Court provided:

Codefendant Abshire was tried separately, was found

guilty of first-degree murder, and was likewise sentenced

to death. This Court subsequently reversed Abshire's

conviction and vacated his death sentence based on the

fact that during Abshire's trial, the assistant state

attorney indicated that he sought to exclude women from

the jury solely because of gender. Abshire v. State, 642 So.

2d 542 (Fla. 1994). Upon remand, Abshire received a life

sentence.

Marquard filed a motion for postconviction relief pursuant

to Florida Rule of Criminal Procedure 3.850, and on May

12, 1999, the trial court ordered a hearing. Defense

counsel amended the motion, asserting that Marquard's

death sentence should be vacated based on newly

discovered evidence that Abshire's sentence was reduced

to life and Abshire's admission to cutting the victim's neck

while she was still alive. After holding an evidentiary

hearing, the trial court denied relief but reserved

jurisdiction on Marquard's’ proportionality claim.

Marquard appealed the denial of relief, and this Court

temporarily relinquished jurisdiction for the sole purpose

of allowing the circuit court to enter an order on

proportionality. After reviewing the record, the trial court

found that Marquard's sentence of death was

proportional. This consolidated appeal and petition for

writ of habeas corpus followed.

Marquard v. State, 850 So. 2d 417, 422-23 (Fla. 2002).

Following the denial of certiorari by this Court, Marquard unsuccessfully

sought collateral relief from both the state and federal courts. See Marquard v.

State, 850 So.2d 417 (Fla. 2002) (affirming the circuit court's denial of defendant’s

original postconviction relief motion and denying the state habeas petition);

Marquard v. Sec'y for Dept. of Corr., 429 F.3d 1278 (11th Cir. 2005) (affirming the

federal district court's denial of federal habeas corpus petition), cert. denied, 547

U.S. 1181 (2006); Marquard v. State, 993 So.2d 513 (Fla. 2008) (denying successive

postconviction motion addressed to lethal injection protocols in unpublished

opinion).

On January 16, 2016, this Court issued Hurst v. Florida, which applied Ring

v. Arizona, 536 U.S. 584 (2002) to Florida’s capital sentencing scheme. This Court

reiterated that a jury, not a judge, must find the existence of an aggravating factor

to make a defendant eligible for the death penalty. Hurst v. Florida, 136 S. Ct. at

624 (determining that Florida’s sentencing scheme was unconstitutional to the

extent it required the judge alone to find the existence of an aggravating

circumstance). Subsequently, the Florida Supreme Court issued Hurst v. State and

Asay v, State, 210 So.3d 1 (Fla. 2016) (holding Hurst v. Florida and Hurst not

retroactive to cases final before June 24, 2002). See also Mosley v. State, 209 So. 3d

1248, 1272-73 (Fla. 2016) (holding that, as a matter of state law, Hurst v. State does

apply retroactively to defendants whose sentences were not yet final when Supreme

Court issued Ring).

As a result, on January 9, 2017, Marquard filed a second successive motion

for postconviction relief claiming entitlement to a new sentencing and asserting n

Hurst v. Florida and Hurst v. State should be applied retroactively and that his

sentence violated the Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution as well as related Florida Constitutional provisions. The trial

court followed, Asay determining Hurst relief was not available to Marquard.

Alternately, the trial court found any Hurst error harmless beyond a reasonable

doubt. In so doing, it relied on Davis v. State, 207 So.3d 142, 174 (Fla. 2016) and

found Marquard’s jury rendered a unanimous death recommendation, although

instructed “there was no requirement to do so,” “after considering a full

presentation of mitigating circumstances and aggravating factors” coupled with the

fact the mitigation “was neither extensive or compelling,” thus, beyond a reasonable

doubt, the jury “made the requisite factual findings to support a death sentence

before it returned the unanimous recommendation.” (Pet. Apx C at 5) Relief was

denied and Marquard appealed.

The Florida Supreme Court stayed Marquard’s appeal pending its decision in

Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, 138 S.Ct. 513 (2017).

Following issuance of Hitchcock, the Florida Supreme Court issued an Order to

Show Cause “why the trial court’s order should not be affirmed in light of”

Hitchcock. Marquard’ was afforded a response of twenty pages and a reply of ten

pages. The State’s responsive pleading was set at fifteen pages. (Pet. Apx B). It

was the Florida Supreme Court’s decision:

Marquard was sentenced to death following a jury's

unanimous recommendation for death. Marquard v. State,

641 So.2d 54, 56 (Fla. 1994). Marquard's sentence of

death became final in 1995. Marquard v. Florida, 513 U.S.

1132, 115 S.Ct. 946, 130 L.Ed.2d 890 (1995). Thus, Hurst

does not apply retroactively to Marquard's sentence of

death. See Hitchcock [v. State, 226 So.3d 216, 217 (Fla.

2017), cert. denied, —— U.S. , 188 S.Ct. 5138, 199

L.Ed.2d 396 (2017)].

Marquard v. State, 234 So. 3d 560, 561 (Fla. 2018).

REASONS FOR DENYING THE WRIT

ISSUE I

WHETHER CERTIORARI REVIEW SHOULD BE

DENIED WHERE THE STATE COURT (1) AFFORDED

PETITIONER A CONSTITUTIONALLY ADEQUATE

OPPORTUNITY TO SHOW WHY UNFAVORABLE

BINDING PRECEDENT WAS NOT APPLICABLE TO

HIS CAPITAL CASE; (2) DETERMINED HURST V.

FLORIDA AND AURST V. STATE WERE NOT

RETROACTIVE TO PETITIONER'S CASE BASED ON

STATE LAW; AND (8) PETITIONER’S CAPITAL

SENTENCE COMPORTS WITH CALDWELL V.

MISSISSIPPE AND THE FLORIDA SUPREME

COURTS DECISION DOES NOT CONFLICT WITH

ANY DECISION OF THIS COURT OR INVOLVE AN

IMPORTANT, UNSETTLED QUESTION OF FEDERAL

LAW? (RESTATED).

It is Marquard’s position that the page limitations imposed by the Florida

Supreme Court violated the Eighth Amendment and denied him Equal Protection

and Due Process under the Fourteenth Amendment as he was not given the

opportunity to brief his Hurst claim fully. He also takes issue with the Florida

Supreme Court’s determination that Hurst relief is not available to capital

defendants whose cases were final before this Court decided Ring. Marquard

maintains that the Eighth Amendment requires he receive relief based on Caldwell

v. Mississippi, 472 U.S. 320 (1985) as his jury was advised its sentencing role was

advisory. As will be shown, nothing about the process employed by the Florida

Supreme Court was inconsistent with the Constitution. Marquard does not provide

any “compelling” reason for this Court to review his case. U.S. Sup. Ct. R. 10.

Indeed, Marquard has not cited to any decision from this or any appellate court that

conflicts with Marquard, 234 So.3d at 561 or holds that page-limitations for

pleadings are unconstitutional, that Hurst v. Florida must be applied retroactively

to all cases on collateral review, and that his capital sentence is in violation of

Caldwell. Certiorari review should be denied.

The Florida Supreme Court’s Briefing Order in Petitioner’s Successive

Postconviction Appeal Is a Matter of State Court Procedure and Does

Not Implicate the Federal Constitution, Due Process or Equal

Protection.

Marquard takes issue with the procedure and page limitations the Florida

Supreme Court imposed for the successive postconviction appeal of his Hurst v.

Florida! Hurst v. State claim. It is Marquard’s position that the page limitation

denied him access to the courts and meaningful review. However, the Florida

Supreme Court’s determination of appropriate page limits for a successive

postconviction appeal is solely a matter of state court procedural law. Consequently,

this determination concerns only state law and is outside the scope of this Court’s

certiorari jurisdiction. See, e.g., Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1936)

(noting “whether the law of the state shall be declared by its Legislature in a

statute or by its highest court in a decision is not a matter of federal concern” and

that “[elxcept in matters governed by the Federal Constitution or by acts of

Congress, the law to be applied in any case is the law of the state”); Patterson v.

New York, 432 U.S. 197, 201 (1977) (observing “it is normally within the power of

the State to regulate procedures under which its laws are carried out”) (internal

quotes/citations omitted). Accordingly, Marquard’s constitutional protestations here

do not support certiorari review.

Marquard’s Eighth Amendment, Due Process and Equal Protection

arguments challenging the state briefing procedure is unavailing. He cannot show

that the Florida court’s longstanding “tag” procedure violates any federal

constitutional right. The Florida Supreme Court merely limited the number of

pages for a successive appeal to twenty after it had thoroughly reviewed in its lead

case, Hitchcock, 226 So.3d at 216-17, whether Hurst claims were retroactive to

cases where the sentence was final before Ring.! There is no constitutional infirmity

in this procedure and, thus, no basis for the exercise of this Court’s certiorari

jurisdiction. In fact, this Court employs a similar procedure when dealing with

numerous cases involving the same issue. It decides the lead case, and then vacates

1 The court in Hitchcock ruled:

We have consistently applied our decision in Asay v. State, 210 So. 3d

1 (Fla. 2016)], denying the retroactive application of Hurst v. Florida

as interpreted in Hurst v. State to defendants whose death sentences

were final when the Supreme Court decided Ring v. Arizona, 536 U.S.

584, 122 S. Ct. 2428, 153 L.Ed.2d 556 (2002). See, e.g., Zack v. State,

___ So. 8d __, 42 Fla. L. Weekly S656, 2017 WL 2590703 (Fla. June

15, 2017); Marshall v. Jones, 226 So. 3d 211, 2017 WL 1739246 (Fla.

May 4, 2017); Lambrix v. State, 217 So. 3d 977 (Fla. 2017); Willacy v.

Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17, 2017); Bogle v.

State, 213 So. 3d 833 (Fla. 2017); Gaskin v. State, 218 So. 3d 399 (Fla.

2017). Hitchcock is among those defendants whose death sentences

were final before Ring, and his arguments do not compel departing

from our precedent.

Although Hitchcock references various constitutional provisions as a

basis for arguments that Hurst v. State should entitle him to a new

sentencing proceeding, these are nothing more than arguments that

Hurst v. State should be applied retroactively to his sentence, which

became final prior to Ring. As such, these arguments were rejected

when we decided Asay.

Hitchcock, 226 So.3d at 217.

10

and remands the other cases to the lower courts in light of the decision in the lead

case. This “grant, vacate, and remand,” (“GVR”) is “an integral part of this Court’s

practice, accepted and employed by all sitting and recent Justices.” Lawrence v.

Chater, 516 U.S. 163, 166 (1996). See Wellons v. Hal, 558 U.S. 220, 225 (2010)

(observing “GVR order conserves the scarce resources of this Court”). While some

Justices have criticized the GVR practice, those criticisms are on case-specific

grounds, not on Due Process grounds. See, e.g., Stutson v. United States, 516 U.S.

163, 180-81 (1996) (Scalia, J., dissenting) (arguing for limitations on GVRs in other

situations, but noting “largest category” of GVRs arise when the Court’s decision

“has cast doubt on the judgment rendered by a lower federal court or a state court”

and using GVR procedure there serves the “interests of efficiency”). Marquard fails

to cite a case from this or any appellate court holding that the “tag” or GVR practice

for dealing with a mass number of cases involving the same issue violates Due

Process or Equal Protection.

Clearly, there is no constitutional violation where the courts place reasonable

limitations on pleadings in this context. See, e.g., Pennsylvania v. Finley, 481 US.

551, 555-57 (1987) (finding no federal constitutional right to postconviction relief);

Evitts v. Lucey, 469 U.S. 387, 393 (1985) (entitlements apply only to first appeal as

a matter of right). Indeed, rules of court procedure place limits on briefing in every

case. See, e.g., U.S. Sup. Ct. R. 33 (specifying format and limitations on briefs filed

in this Court, including word limits). See also, Jones v. Barnes, 463 U.S. 745, 753

(1983) (noting that most courts impose page limits on briefs as well as limits on the

11

time given for oral arguments). Carried to its logical conclusion, Marquard’s

argument suggests that any limitation on briefing would be unconstitutional. Such

would lead to the absurd and unworkable result where litigants would have free

reign to file hundreds of pages of briefing raising frivolous issues and further

burdening the court system.

Bounds v. Smith, 430 U.S. 817 (1977) and Douglas v. People of State of

California, 372 U.S. 353 (1963) do not advance Marquard’s plea for certiorari

review. In Douglas, this Court ruled unconstitutional California’s requirement that

appellate counsel be appointed for an indigent defendant only if the appellate court

determined such appointment would be helpful to the defendant or court. Douglas,

372 U.S. at 357-58. This Court opined that the California requirement left an

indigent defendant, “where the record is unclear or the errors are hidden,” with a

“meaningless ritual, while the rich man [enjoyed] a meaningful appeal.” Jd2

Additionally, Bounds does not provide Marquard with a basis for certiorari review.

In Bounds, 430 U.S. at 830-31, this Court concluded that state agencies further the

constitutional right of access to court by assisting inmates in the preparation and

filing of legal papers by providing an adequate law library. Such concerns are not

present here.

Again, this was an appeal from a second successive postconviction motion. It

was not an initial appeal as of right, or even an initial postconviction appeal.

Marquard had counsel throughout and was provided records and transcripts for his

2 Anders v. California, 386 U.S. 738, 744 (1967) sets out procedures for counsel to

follow when representing indigents on direct appeal when the case is frivolous.

12

state and federal proceedings. His successive postconviction motion was submitted

within the standard 25-page limit under Fla. R. Crim. P. 3.851(e)(2) and other than

asking for “full briefing” (Marquard’s Response pages 2, 5-6), he filed his responsive

appellate pleading without identifying any claim he had to forego due to page limits.

Even here, Marquard has not identified any meritorious issues he was forced to

abandon based on the state court’s briefing procedure. The “basic question is one of

adequacy of [defendant’s] access to procedures for review of his conviction, ... and

[this question] must be decided in light of avenues which [defendant] chose not to

follow as well as those he now seeks to widen.” United States v. McCollom, 426 U.S.

317, 326 (1976)). See Jones v. Barnes, 463 U.S. 745, 749 (1983) (opining right to

appellate counsel does not include right to have counsel press every non-frivolous

claim). Marquard never gave the state court a basis to expand briefing.

Furthermore, Marquard was given the opportunity to try and distinguish

his case from the decision in the lead case, Hitchcock, and show why Hurst v.

Floridal Hurst v. State should be retroactive to his case even in light of Asay, 210

So.3d at 22 (determining Hurst not retroactive to cases final before June 24, 2002);

Mosley, 209 So.3d 1274 (noting “we have now held in Asay v. State, that Hurst does

not apply retroactively to capital defendants whose sentences were final before the

United States Supreme Court issued its opinion in Ring”). The state court

procedure does not implicate a federal constitutional right and Marquard has not

shown that the decision conflicts with a decision of this Court or any other federal

circuit court or state supreme court. This Court should deny certiorari.

13

The Florida Court’s Ruling on Retroactivity Does Not Violate Equal

Protection or the Eighth Amendment

Marquard asserts he is entitled to retroactive application of Hurst because

capital defendant’s whose cases was not final until after Ring received relief and

such disparate treatment runs afoul of the equal protection clause of the Fourteenth

Amendment. He maintains that “partial retroactivity” is unconstitutional, and

pointing to McLaughlin v. Florida, 379 U.S. 184 (2008) he suggests there is no

sound basis for the different treatment. (Pet. 11-12). Other than asserting his right

against an arbitrary infliction of punishment and while noting there are various

reasons, delay in briefing, difference in timing of the transmission of the record, or

court vacation, Marquard does not cite a case holding that it is unconstitutional to

treat defendants differently based on when a case becomes final. Likewise, he has

offered nothing to establish that retroactivity must be binary only.

The Florida Supreme Court’s holding in Hurst v. State followed this Court’s

ruling in Hurst v. Florida in requiring that aggravating circumstances be found by a

jury beyond a reasonable doubt before a death sentence may be imposed. The

Florida court then expanded this Court’s ruling, requiring in addition that “before

the trial judge may consider imposing a sentence of death, the jury in a capital case

must unanimously and expressly find all the aggravating factors that were proven

beyond a reasonable doubt, unanimously find that the aggravating factors are

sufficient to impose death, unanimously find that the aggravating factors outweigh

the mitigating circumstances, and unanimously recommend a sentence of death.”

Hurst v. State, 202 So. 3d at 57. In Asay, 210 So.3d at 22, the Florida Supreme

14

Court ruled that, as a matter of state law, established in Witt v. State, 387 So.2d

922 (Fla. 1980), cert. denied, 449 U.S. 1067 (1980), Hurst v. State is not retroactive

to any case in which the death sentence was final prior to date Ring issued. See

also Mosley, 209 So.3d at 1272-73 (holding that, as a matter of state law, Hurst v.

State does apply retroactively to defendants whose sentences were not yet final

when this Court issued Ring). Florida’s partial retroactive application of Hurst v.

State is not constitutionally unsound and does not otherwise present a matter that

merits the exercise of this Court’s certiorari jurisdiction.

This Court has held that, in general, a state court’s retroactivity

determinations are a matter of state law, not federal constitutional law. Danforth v.

Minnesota, 552 U.S. 264 (2008). State courts may fashion their own retroactivity

tests, including partial retroactivity tests. A state supreme court is free to employ a

partial retroactivity approach without violating the federal constitution under

Danforth. The state retroactivity doctrine employed by the Florida Supreme Court

since Hurst v. State did not violate federal retroactivity standards. The court’s

expansion of Hurst v. Florida in Hurst v. State is applicable only to defendants in

Florida, and, consequently, subject to retroactivity analysis under state law as set

forth in Witt. See Asay, 210 So. 3d at 15 (noting that Florida’s Witt analysis for

retroactivity provides “more expansive retroactivity standards’ than the federal

standards articulated in Teague v. Lane, 489 U.S. 288 (1989) (emphasis in original;

citation omitted).

This Court has recognized repeatedly that where a state court judgment rests

15

on non-federal grounds, where the non-federal grounds are an adequate basis for

the ruling independent of the federal grounds, “our jurisdiction fails.” Fox Film

Corp. v. Muller, 296 U.S. 207, 210 (1935); Michigan v. Long, 463 U.S. 1032, 1038

(1983). See also Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming this

Court has no jurisdiction to review a state court decision on certiorari review unless

a federal question is raised and decided in the state court below); Street v. New

York, 394 U.S. 576, 581-82 (1969) (same). If a state court’s decision is based on

separate state law, this Court “of course, will not undertake to review the decision.”

Florida v. Powell, 559 U.S. 50, 57 (2010).

Florida’s retroactivity analysis is a matter of state law. This fact alone

militates against the grant of certiorari in this case. It should also be noted that this

Court has repeatedly denied certiorari to review the Florida Supreme Court’s

retroactivity decisions following the issuance of Hurst v. State. See, e.g., Asay v.

State, 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017); Hitchcock v. State,

226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017); Lambrix v. State, 227 So.

3d 112 (Fla.), cert. denied, 138 S. Ct. 312 (2017); Hannon v. State, 228 So. 3d 505

(Fla.), cert. denied, 138 S. Ct. 441 (2017); Branch v. State, 234 So. 3d 548 (Fla.),

cert. denied, 138 S. Ct. 1164 (2018).

Marquard argues that the Florida Supreme Court’s partial retroactive

application of Hurst v. Florida as interpreted in Hurst v. State violates the Eighth

Amendment and the Equal Protection Clause of the Fourteenth Amendment

However, new rules of law such as the rule announced in Hurst v. Florida, do not

16

usually apply to cases that are final. See Whorton v. Bockting, 549 U.S. 406, 416

(2007) (explaining normal rule of nonretroactivity and holding the decision in

Crawford v. Washington, 541 U.S. 36 (2004), was not retroactive). Additionally, the

general rule is one of nonretroactivity for cases on collateral review, with narrow

exceptions. See Teague v. Lane, 489 U.S. 288, 307 (1989) (observing there were only

two narrow exceptions to the general rule of nonretroactivity for cases on collateral

review). Furthermore, certain matters are not retroactive at all. Hurst v. Florida

was based on this Court’s holding in Aing, which in turn was based on Apprendi v.

New Jersey, 530 U.S. 466 (2000). This Court has held that “Ring announced a new

procedural rule that does not apply retroactively to cases already final on direct

review.” Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (emphasis added).

In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), this Court held “that a new

rule for the conduct of criminal prosecutions is to be applied retroactively to all

cases, state or federal, pending direct review or not yet final, with no exception for

cases in which the new rule constitutes a ‘clear break’ with the past.” Under this

“pipeline” concept, only those cases still pending direct review or not yet final would

receive the benefit from alleged Hurst error. Retroactivity under Griffith depends

on the date of the finality of the direct appeal. Under Teague, if a case is final on

direct review, the defendant will not receive the benefit of the new rule unless one of

the narrow exceptions announced in Teague applies. Again, finality is the critical

date-based test under Teague. There is nothing about Florida’s decision providing

partial retroactivity to Hurst v. Florida and Hurst v. State that is contrary to this

17

Court’s retroactivity jurisprudence.

Moreover, if partial retroactivity violated the United States Constitution or

this Court’s retroactivity jurisprudence, this Court would not have given partial

retroactive effect to a change in the penal law in Dorsey v. United States, 567 U.S.

260 (2012). In Dorsey, this Court held that the Fair Sentencing Act was partially

retroactive in that it would apply to those offenders who committed applicable

offenses prior to the effective date of the act, but who were sentenced after that

date. Id. at 273. See United States v. Abney, 812 F.3d 1079, 1097-98 (D.C. Cir.

2016) (noting that prior to the decision in Dorsey, this Court had not held a change

in a criminal penalty to be partially retroactive).

Any retroactive application of a new development in the law under any

analysis will mean that some cases will get the benefit of a new development, while

other cases will not, depending on a date. Drawing a line between newer cases that

will receive benefit of a new development in the law and older final cases that will

not receive the benefit is part and parcel of the landscape of any retroactivity

analysis. It is simply part of the retroactivity paradigm that some cases will be

treated differently than other cases based on the age of the case. This is not

arbitrary and capricious in violation of the Eighth Amendment; it is simply a fact

inherent in any retroactivity analysis.

Marquard’s argument for a violation of the Equal Protection Clause fares no

better than his Eighth Amendment argument. A criminal defendant challenging the

State’s application of capital punishment must show intentional discrimination to

18

prove an equal protection violation. McCleskey v. Kemp, 481 U.S. 279, 292 (1987). A

“{dliscriminatory purpose’. . . implies more than intent as violation or intent as

awareness of consequences. It implies that the decisionmaker . . . selected or

reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in

spite of, its adverse effects upon an identifiable group.” Jd. at 298.

The Florida court’s partial retroactivity ruling was based on the date of the

fing decision, not based on a purposeful intent to deprive pre- Ring death sentenced

defendants in general, and Marquard in particular, relief under Hurst v. State. The

Florida Supreme Court has been entirely consistent in denying Hurst relief to those

defendants whose convictions and sentences were final when Ring was issued in

June 2002. Marquard is being treated exactly the same as similarly situated capital

defendants. Consequently, his equal protection argument is meritless. Also, in Beck

v. Washington, 369 U.S. 541 (1962), this Court refused to find constitutional error

in the alleged misapplication of Washington law by Washington courts: “We have

said time and again that the Fourteenth Amendment does not ‘assure uniformity of

judicial decisions .. . [or] immunity from judicial error. . . .. Were it otherwise, every

alleged misapplication of state law would constitute a federal constitutional

question.” Jd. at 554-55 (citation omitted). This Court should deny review.

Marquard’s Death Sentence Comports with Caldwell v. Mississippi.

Here, Marquard points to Hurst v. Florida, and Caldwell to assert he is

entitled to resentencing as his jury was instructed its role was advisory in violation

of the Eighth Amendment and Caldwell. This issue was not raised before the

19

Florida Supreme Court. In his successive postconviction relief motion, Marquard

assert that in light of Hurst v Florida and the changes the Legislature made to the

capital sentencing statute, his new jury must be instructed regarding its sentencing

responsibility in accordance with Caldwell. Even if the Caldwell issue is viewed as

properly raised, no conflict between the Florida Supreme Court’s decision and this

Court’s Eighth Amendment jurisprudence set forth in Caldwell and its progeny

exists. Likewise, there is no conflict between the Florida Supreme Court’s decision

and that of any other federal appellate court or state supreme court. Finally, there

is no underlying constitutional error under the facts of this case.

This Court has recognized that cases which have not developed conflicts

between federal or state courts or presented important, unsettled questions of

federal law usually do not deserve certiorari review. Rockford Life Insurance Co. v.

Illinois Department of Revenue, 482 U.S. 182, 184, n. 3 (1987). The law is wellsettled that this Court does not grant certiorari for the purpose of reviewing

evidence and/or discussing specific facts. United States v. Johnston, 268 U.S. 220

(1925) (denying certiorari to review evidence or discuss specific facts). Further, this

Court has rejected requests to reassess or re-weigh factual disputes. Page v.

Arkansas Natural Gas Corp., 286 U.S. 269 (1932) (rejecting request to review fact

questions); General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175,

178 (1924) (same).

In Caldwell, error was found based on the prosecutor’s argument to the jury

that the appellate court would review that sentence and would decide whether a

20

death sentence was appropriate. “To establish a Caldwell violation, a defendant

necessarily must show that the remarks to the jury improperly described the role

assigned to the jury by local law.” Dugger v. Adams, 489 U.S. 401, 407 (1989). See

also Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (determining that to prove a

Caldwell violation a defendant must show that the prosecutor’s comments or jury

instructions “improperly described the role assigned to the jury by local law.

Entitlement to relief under Caldwell requires that the prosecutor, judge, or jury

instructions misrepresent the jury’s role in sentencing. Darden v. Wainwright, 477

U.S. 168, 183 n.15 (1986) (rejecting a Caldwell attack, explaining that “Caldwell is

relevant only to certain types of comment—those that mislead the jury as to its role

in the sentencing process in a way that allows the jury to feel less responsible than

it should for the sentencing decision”)

The standard jury instructions in Florida at the time of Marquard’s

sentencing were used in his case, and correctly advised the jury about its role and

the weight its recommendation is given based on the law in existence at the time of

sentencing. See Reynolds v. State, ___ So. 3d ___, 2018 WL 1633075 (Fla. April 5,

2018) (explaining that under Romano v. Oklahoma, the Florida standard jury

instructions at issue “cannot be invalidated retroactively prior to Ring simply

because a trial court failed to employ its divining rod successfully to guess at

completely unforeseen changes in the law by later appellate courts.”); Patrick v.

State, 104 So.3d 1046, 1064 (Fla. 2012) (holding “standard penalty phase jury

instructions fully advise the jury of the importance of its role, correctly state the

21

999

law, do not denigrate the role of the jury and do not violate Caldwell’”)(citations

omitted). The instant case would be a uniquely inappropriate vehicle for certiorari

because this is a postconviction case and this Court would have to address

retroactivity before even reaching the underlying jury instruction issue.?

To the extent Marquard suggests that jury sentencing is required under

federal law, as a result of Hurst v. Florida, that is not the case. See Ring, 536 U.S.

at 612 (Scalia, J., concurring) (explaining “today’s judgment has nothing to do with

jury sentencing. What today’s decision says is that the jury must find the existence

of the fact that an aggravating factor existed.”) (emphasis in original); Harris v.

Alabama, 518 U.S. 504, 515 (1995) (holding Constitution does not prohibit the trial

judge from “imposling] a capital sentence”). No case from this Court has mandated

jury sentencing in a capital case, and such a holding would require reading a

requirement into the Constitution that is simply not there. The Constitution

provides a right to trial by jury, not to sentencing by jury.+ It follows there is no

3 Respondent is cognizant of the Honorable Justice Sotomayor’s dissent from the

denial of certiorari in Middleton v. Florida, 138 S. Ct. 829 (2018), wherein she

criticized the Florida Supreme Court for not addressing the Caldwell claim in cases

where Hurst was applicable under state law. The Florida Supreme Court has now,

however, explicitly rejected Caldwell attacks on Florida’s standard penalty phase

jury instructions in the wake of Hurst. See Reynolds v. State, ____ So. 8d ___, 2018

WL 1633075 (Fla. April 5, 2018); Johnson v. State, ___ So. 3d ____, 2018 WL 1633043

(Fla. April 5, 2018) (citing Reynolds in rejecting Caldwell claim).

4 See State v. Mason, ___ N.E.3d ___, 2018 WL 1872180, *5-6 (Ohio, April 18, 2018)

(noting “[nlearly every court that has considered the issue has held that the Sixth

Amendment is applicable to only the fact-bound eligibility decision concerning an

offender’s guilt of the principle offense and any aggravating circumstances” and

that “weighing is not a factfinding process subject to the Sixth Amendment.”)

(string citation omitted); United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007)

22

bases for certiorari review as a Florida jury’s decision regarding a death sentence

was, and remains, an advisory recommendation. See Dugger v. Adams, 489 U.S. 401

(1989). See also §921.141(2)(c), Fla. Stat. (2017) (providing that “[i]f a unanimous

jury determines that the defendant should be sentenced to death, the jury’s

recommendation to the court shall be a sentence of death”)5 (emphasis added).

Thus, there was no violation of Caldwell because there were no comments or

instructions to the jury that “improperly described the role assigned to the jury by

local law.” Romano, 512 U.S. at 9. Marquard’s jury was advised accurately that its

decision was an advisory recommendation and in light of that, it recommended

death unanimously. Hurst v. Florida has not opened the door to Marquard’s claim of

an Eighth Amendment violation based on Caldwell and certiorari review should be

denied.

(opining “[als other courts have recognized, the requisite weighing constitutes a

process, not a fact to be found.”); United States v. Purkey, 428 F.3d 738, 750 (8th

Cir. 2005) (characterizing the weighing process as “the lens through which the jury

must focus the facts that it has found” to reach its individualized determination);

Waldrop v. Comm’r, Alabama Dept. of Corr., 2017 WL 4271115, *20 (11th Cir. Sept.

26, 2017) (unpublished) (rejecting Hurst claim and explaining “Alabama requires

the existence of only one aggravating circumstance in order for a defendant to be

death-eligible, and in Mr. Waldrop’s case the jury found the existence of a qualifying

aggravator beyond a reasonable doubt when it returned its guilty verdict.”) (citation

omitted); State v. Gales, 658 N.W.2d 604, 628-29 (Neb. 2003) (stating “we do not

read either Apprendi or Ring to require that the determination of mitigating

circumstances, the balancing function, or proportionality review to be undertaken

by a jury”).

5 A Florida trial court, while bound by the jury’s findings of no aggravation and a

recommendation of a life sentence, is not bound by a jury’s recommendation of a

death sentence. A judge is still free to reject the jury’s death recommendation and

impose a life sentence.

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